Residency Unnecessary in Ballot Canvassing

(CN) – An election law that requires petitioner circulators to have Virginia residency imposes unconstitutional requirements on the Libertarian Party, the 4th Circuit ruled. Under Virginia law, either the candidate or a Virginia resident, “who is not a minor or a felon whose voting rights have not been restored,” must personally witness each signature on petitions to place candidates on the state’s official ballot. Hoping to put a Libertarian presidential candidate on the 2012 ballot, the party needed the signatures of 10,000 “qualified” voters to for the presidential race. This total also had to include at least of 400 signatures from each of 11 congressional districts. The Libertarians allegedly relied on paid professionals and unpaid volunteers to circulate nominating petitions and to collect signatures. Only two of its members were Virginia residents, but state law would require their presence whenever a nonresident collected a signature. Darryl Bonner, head of Central Petition Management, has worked as a circulator and canvasser since 1993. He is not a Virginia resident and a knee injury kept him from joining the Libertarians in their canvassing efforts last year. While circulating petitions in Virginia for the Green Party in 2008, however, Bonner said he found “being accompanied by a non-professional Virginia resident significantly slowed the process down and inhibited his ability to communicate effectively with potential signatories.” He and the Libertarian Party of Virginia challenged the witness residency requirement in a May 2012 federal complaint, about three months prior to the deadline for submitting nomination signatures. They claimed that the law “reduces the pool of circulators available.” This in turn makes it more difficult for Libertarians “to disseminate their political views, to choose the most effective means of conveying their message, to associate in a meaningful way with the prospective solicitors for the purpose of eliciting political change, to gain access to the ballot, and to utilize the endorsement of their candidate,” according to the complaint. A federal judge agreed that the requirement was unconstitutional in July 2012 and permanently enjoined its enforcement. The Richmond, Va.-based 4th Circuit affirmed last week “in all respects.” Though Virginia has a legitimate governmental interest in preventing election fraud, the witness residency requirement is not sufficiently tailored to achieve that objective, according to the ruling. As an alternative measure, the Libertarians suggested that Virginia could put the nonresident witnesses on the hook in the event of possible fraud. They said the witnesses could enter into a binding legal agreement with the commonwealth to comply with any civil or criminal subpoena that may issue. Though Virginia complained that it would still have to locate and possibly subpoena witnesses to hold them accountable, the federal appeals court was unmoved. “There are few guarantees in life, however, and it is hardly an iron-clad proposition that a similarly situated resident witness will be amenable to service and comply with a lawfully issued subpoena,” Judge Robert King wrote for a three-judge panel. “Simply stated, the board has produced no concrete evidence of persuasive force explaining why the plaintiffs’ proposed solution, manifestly less restrictive of their First Amendment rights, would be unworkable or impracticable,” he added. The panel has “scant choice” but to affirm, according to the ruling. “Having fallen short of adducing the quantum of proof necessary to place into issue the relative effectiveness of the plaintiffs’ proposed alternative to the patently burdensome witness residency requirement, the board cannot prevail,” King wrote. “Given the facts as developed below and viewed in the proper light, we have scant choice but to conclude, as the district court did, that the requirement fails strict scrutiny and is unconstitutional.” The ruling also denies that Bonner’s knee injury undermines his standing. “Whereas a knee ailment like the one afflicting Bonner would have disabled any circulator or witness without regard to residency, the law of which Bonner complains targets him and others of his ilk with laser precision; consequently, Bonner’s legal disability relates more closely to his asserted injury than does his physical infirmity,” King wrote. “Moreover, Bonner’s medical condition is ephemeral and, presumably, will have sufficiently improved by 2016, but if the witness residency requirement then remains on the books, he will yet be prohibited from circulating petitions unencumbered. Lastly, we imagine that Bonner could have overcome his uncooperative knee long enough to sit down on a street corner and solicit passersby for a few signatures (he did, after all, manage to attend his scheduled deposition). Had that happened, Bonner undoubtedly would not have been as effective as when healthy, but his limited efficacy would have been even further hindered by the presence of a resident witness.” (Parentheses in original.) The three defendant members of the Virginia State Board of Elections were Charles Judd, Kimberly Bowers and Don Palmer.